Write a note on the sources of Mohammedan Law, its evolution, and the Jurists who have contributed to its growth.
Find the question and answer of Muslim Law only on Legal Bites.
Question: Write a note on the sources of Mohammedan Law, its evolution, and the Jurists who have contributed to its growth. [BJS 1977]Find the question and answer of Muslim Law only on Legal Bites. [Write a note on the sources of Mohammedan Law, its evolution, and the Jurists who have contributed to its growth.]AnswerThe sources of Muslim law can be classified into two categories, i.e. (a) Primary Sources and (b) Secondary Sources. Primary sources are those sources that are based on...
Question: Write a note on the sources of Mohammedan Law, its evolution, and the Jurists who have contributed to its growth. [BJS 1977]
Find the question and answer of Muslim Law only on Legal Bites. [Write a note on the sources of Mohammedan Law, its evolution, and the Jurists who have contributed to its growth.]
Answer
The sources of Muslim law can be classified into two categories, i.e. (a) Primary Sources and (b) Secondary Sources. Primary sources are those sources that are based on religious beliefs mentioned in Holy Scriptures or books. And here the legislatures and judiciary are the secondary sources.
I. Primary Sources of Muslim Law
Primary sources are those sources that are based on religious beliefs mentioned in Holy Scriptures or books. These sources are universally accepted as authentic and they are primary which means these sources shall be relied on before any other source. It means that for any question relating to their personal life or family, the Muslims shall resort to these primary sources of law to understand the legal opinion in such situations. The known five primary sources of Muslim law are:
Holy Quran
The Holy Quran is the holy book of Islam which is believed to contain the direct words of God as perceived by Prophet Muhammad. The Quran is like a Constitution for the Muslims and it contains all principles to be used in personal laws including marriage, divorce, succession, etc. In case of any question with respect to personal laws of Islam, the Quran is the first source which needs to be looked into. The Quran is the final authority on any issue related to Muslim personal law. In a strict sense, the Quran cannot be called a legal code and Muslim jurists agree that it contains verses explaining the way of living and the morals of life and it is not a legal code backed by sanctions.
Sunnah
The word Sunnah basically means 'path'. It connotes that the path that the Prophet followed should be followed by his people after him. Sunnah is second in priority after the Quran. Therefore, whenever there is a situation where the Holy Quran is silent and the people are unable to make a decision. After the demise of Prophet Muhammad, the Muslims were divided into two sects on the issue of a worthy and competent successor; first being Shia Muslims and the second being Sunni Muslims. The division of the religion also led to several books and scriptures become sources of Muslim law. One such source is the Sunnah. Sunnah is followed by the Shia Muslims in their day to day lives to comprehend answers to questions that they face.
Hadith
Hadiths are the books containing the Sunnah. It means that Sunnah is the actions and words spoken by the Prophet and Hadith is the Scripture where these are recorded. To ensure the authenticity of the books, the Muslim scholars wrote the Hadith with the reference of their source and the reference of the reference so that all the references link in some way to the Prophet or an Imam. All measures were taken to maintain the veracity of the wordings in the Hadiths.
Ijma
The term ijma means a consensus, i.e. the agreement between all on a particular point of fact or law. jma is a concept of law made by consensus of all Islamic jurists or other persons of knowledge and skill. There are three kinds of Ijma a) Ijma of companions b) Ijma of jurist c) Ijma of people It is based on the belief that when all the most revered persons of the society having maximum knowledge of the Quran have together taken a decision, it should be for the benefit of the Muslim community.
Qiyas
As Islam spread in different parts of the world, they rendezvous with several other communities such as Byzantines and Persians and with the passage of time new difficulties arose. The Holy Quran was not capable of dealing with new emerging difficulties arising from contact with the outside world. To resolve this problem, the Muslim jurists commenced referring to Quran and Sunnah to compare the situations and deduce an answer to the problem on the basis of some analogy. When the answer is found and all the jurists together agree to it, it is called the Qiyas. Thus, Qiyas are Ijmas based on deductive logic. They are the analogical deductions from the existing sources. Qiyas can only explain or interpret the law but cannot change the law.
II. Secondary Sources of Muslim Law
Now, as aforementioned, the legislatures and judiciary ought to be the primary source of any law. Nevertheless, since Muslim personal law is a law based on religious ethics and principles, the legislature takes a back stand. The following are the secondary sources that have led to the development of Muslim personal law:
Custom
Customs are basically practices that people follow continuously for a long period of time and because of that, it becomes a source of law. So there are two important conditions of custom a) Continuous and b) Without any influence
In the case of Abdul Hussain v. Bibi Sona Dero, (1918) 20 BOMLR 528, Plaintiff claimed property on the basis of the custom that in their family women were denied inheritance if married. The judges were convinced that the custom was prevalent and gave the judgment that preferred custom to the Islamic law of Inheritance.
Legislations
Legislations mean statutes enacted by the Parliament or the State legislature for the regulation of human actions in a particular aspect. There have been several legislations enacted by the Parliament to lay the foundation of Muslim law in India. The first law that was passed was the Shariat Act, of 1937. In Islam, the entire body of law that governs their day-to-day personal laws, marriage, divorce, etc. is collectively called the Sharia. Thus, based on Sharia and with the object of making it a complete body of Muslim laws, the Act was titled the Shariat Act.
Judicial Pronouncements
It is said that the law protects only the vigilant. This is very much right in the case of Muslims in India. The development of Muslim law by the judiciary came to its full development in the 1980s because till then, Muslim men and women have been sleeping on their rights or were ignorant about their rights. The first landmark judgment that deals with Muslim personal law was the 1986 judgment in Shah Bano Begum v. Md. Ahmed Khan, AIR 1985 SC 945. In this case, the apex court held that Muslim women have a right to maintenance under Section 125 of the CrPC even if the Quran or their personal laws have provided for an alternate remedy. The same ratio was upheld by the apex court in Daniel Latifi v. Union of India, (2001) 7 SCC 740.
Equity justice and good conscience
If nothing works i.e. if the existing sources are not sufficient to solve the problem arising with the change and development in society then judges use their own reasoning and give judgment based on equity, justice, and good conscience.